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NFL Players Right-of-Publicity Claims in NFL Films Preempted by Copyright Act

In Dryer, Bethea and White v. The National Football League, 14-3428 (8th Cir. February 26, 2016) (Available here), the Eighth Circuit affirmed the district court’s grant of summary judgment to the National Football League (“NFL”) on the appellant’s right-of-publicity and Lanham Act claims.  

    John Frederick Dryer (“Dryer”), Elvin Lamont Bethea (“Bethea”) and Edward Alvin White (“White”) played professional football in the NFL.  They participated in a class action in which twenty-three players sued the NFL claiming the films produced by NFL-affiliate NFL Films violated the players’ rights under the right-of-publicity laws of various states as well as their rights under the Lanham Act.  Twenty players settled, but these three elected to pursue their claims.  NFL Films depict significant games, seasons and players and include compilations of game footage, interviews with players and coaches.  NFL Films has produced hundreds of these films.

    The district court granted summary judgment to the NFL on the appellant’s right of publicity claims.  The court found that the Copyright Act, 17 U.S.C. §301(a) preempted those claims because the claims challenged a work in which the NFL held a valid copyright and asserted rights identical to those protected by copyright law.  The court also found that the films are expressive, non-commercial speech and therefore appellants’ right-of-publicity claims must yield to the First Amendment.  The films also fell under the newsworthiness or public interest safe harbors included in each relevant state law.

    In determining whether the federal copyright law preempts a cause of action under the state law, the Court of Appeals for the Eighth Circuit asked, (1) whether the work at issue is within the subject matter of copyright as defined in §§ 102 and 103 of the Copyright Act and (2) whether the state law created right is equivalent to any of the exclusive rights within the general scope of copyright as specified in §106.  The Court found that because the appellants do not challenge the NFL’s use of their likeness or identities in any context other than the publication of that game footage, the Court held that the appellants’ right -of-publicity claims challenge a work…within the subject matter of copyright.   

    As for the second prong, the Court agreed with the district court that the films are expressive, rather than commercial, speech and that the Copyright Act therefore preempts the appellants’ right-of-publicity claims.  The Court found that the films do not propose a commercial transaction and consumers pay to view the film, and therefore the films are expressive speech.  On the Lanham Act claim, the Court held that because the appellants provided no evidence that the films contain misleading or false statements regarding their current endorsement of the NFL, their claim of false endorsement under the Lanham Act fails as a matter of law.   

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